Pied2Pro.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAI'I


WILLIAM D. HOSHIJO, ) Docket No. 98-007-E-D
Executive Director, on behalf )
of the complaint filed by ) HEARINGS EXAMINER'S
BRUCE PIED, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
and ) AND RECOMMENDED ORDER;
) APPENDIX "A";
BRUCE PIED, ) ATTACHMENT "1".
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)
) Consolidated with
WILLIAM D. HOSHIJO, ) Docket No. 98-008-E-D-RET
Executive Director, on behalf )
of the complaint filed by )
BRUCE PIED, )
)
and )
)
BRUCE PIED, )
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)


HEARINGS EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER



TABLE OF CONTENTS



Page
I. INTRODUCTION

A. Chronology of Case ................................ 3
B. Summary of the Parties' Contentions ............... 3

II. FINDINGS OF FACT ...................................... 4

III. CONCLUSIONS OF LAW

A. Jurisdiction ...................................... 19
1. Timeliness of Complaint ........................ 19
a) whether Respondent committed
a continuing violation ...................... 20
b) whether the pre-complaint questionnaire
was a timely complaint ...................... 25
2. Respondent IslandAir .......................... 27

B. Disability Discrimination ......................... 28
1. Direct Evidence of Disability Discrimination .. 29
a) whether Complainant has a disability ...... 30
b) whether IslandAir regarded Complainant
as disabled ............................... 32
c) whether Complainant was qualified ......... 33
d) direct evidence of discriminatory intent .. 33
e) Respondent's defenses ..................... 34
2. Circumstantial Evidence of
Disability Discrimination ..................... 34
a) prima facie case .......................... 35
b) whether Respondent had a legitimate,
non-discriminatory reason for not
hiring Complainant ........................ 36
i. 1990 - July 1991 (first period) ........ 36
ii. post-July 1991 - July 1994
(second period) ....................... 39
c) other affirmative defenses ................ 40

C. Liability ........................................ 40

D. Remedies
1. Placement of Complainant in a Pilot Position . 40
2. Back Pay ..................................... 41
3. Front Pay .................................... 42
4. Compensatory Damages ......................... 42
5. Punitive Damages ............................. 43
6. Attorney's Fees and Costs .................... 48
7. Other Equitable Relief ....................... 49

IV. RECOMMENDED ORDER ..................................... 50
I. INTRODUCTION

A. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.

B. Summary of the Parties' Contentions
Complainant Bruce Pied (hereinafter "Complainant") and the
Executive Director allege that: 1) Complainant was a qualified
person with a disability (monocular vision); 2) from August 1990
through July 1994 Complainant applied for a pilot position with
Respondent Aloha IslandAir, Inc. (hereinafter "IslandAir");
3) from at least August 1990 to the present Respondent IslandAir
has maintained a policy of not hiring monocular pilots; and
4) from August 1990 through July 1994 Respondent IslandAir refused
to hire Complainant because of his disability.
Respondent IslandAir contends that: 1) the complaints in
this case were not timely filed and should be dismissed; 2)
Complainant is not a person with a disability; 3) Complainant
failed to timely apply for a pilot position; and 4) Respondent
IslandAir did not hire Complainant for other legitimate, non-
discriminatory reasons.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, the Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.


II. FINDINGS OF FACT
1. Complainant Bruce Pied is a 46 year old white male who
presently resides in Los Angeles, California. (Tr. at 14, 200)
2. Complainant was born with binocular vision (sight in
both eyes). When Complainant was 18 years old, he contracted a
virus and became blind in his left eye. Since that time,
Complainant sees in a manner that is substantially different from
when he was binocular and from other binocular people. For
instance, to center his vision, Complainant must cock his head to
the left. When so centering his vision, Complainant has 15% less
peripheral vision and must constantly move his head to see these
areas. More importantly, Complainant lacks stereopsis, or the
ability to see objects three-dimensionally. He cannot perceive
the depth of objects that are very close and has difficulty
threading needles, building small models and cannot do other types
of close work such as jewelry making or computer chip assembly.
Complainant also cannot use binocular microscopes, night goggles,
watch 3-D movies or play virtual reality games. After he first
became monocular, Complainant also could not judge the distance of
objects a few feet in front of him, and could not play ping pong,
hit baseballs, shoot baskets or parallel park. However, he has
since taught himself to judge such distances and depth. Because
of his monocular vision, Complainant has been rejected for police
officer, fire fighter, pilot, bus driver and certain truck driver
jobs and was not accepted into any branches of the military.
(Tr. at 14-19, 23-25, 243-248, 264-265; Ex. 77 p. 001)
3. Since he was a young boy, Complainant has wanted to
become a pilot. In 1985, when he was 32 years old, Complainant
began to train as a professional pilot, with the goal of flying
with a major airline. In 1987 Complainant obtained his first
class medical certificate with a waiver for his monocular vision.
This certificate demonstrates that Complainant meets the Federal
Aviation Administration (FAA) medical requirements set for
captains (or pilots in command "PIC") on commercial airlines.
Complainant's vision waiver demonstrates that although Complainant
does not meet certain FAA vision criterion, he can perform the
duties of a PIC without endangering air commerce. In 1988,
Complainant completed a professional pilot course, received his
Air Transport Pilot (ATP) license and worked as a flight
instructor for Aztec Air Academy. From 1988-1989 Complainant
attended Long Beach City College and received a two year Associate
of Science degree in aeronautics and professional pilot training.
(Tr. at 22-23, 26-27, 64-65, 202, 268; Exs. 43, 55, 70, 71, 72,
Ex. 77 p. 146, 149)
4. After obtaining his ATP license, Complainant was hired
in November 1989 by Big Island Air to fly tour planes. He was
also a flight instructor and a member of the Hawaii Civil Air
Patrol, Kona Squadron. In January 1990 Complainant obtained a job
with Samoa Aviation and was trained and certified to fly DHC-6
passenger planes. In June 1990 Complainant was hired by Hawaii
Pacific Air and was trained and certified to fly as a first
officer on DC-4/ATL98 cargo planes. Complainant sought this
position because he wanted to work in Hawaii where his family
lived. (Tr. at 26-31, 34-36, 64-65; Exs. 2, 18, 55, 65, 67, 69,
70, 71, 77 p. 147-148)
5. Respondent Aloha IslandAir, Inc. is a wholly owned
subsidiary of Aloha Airgroup, Inc. IslandAir is a regional air
line which flies DHC-6 passenger planes. Since 1995, IslandAir
also flies DHC-8 passenger planes. (Exs. 46, 48, 87)
6. From 1989 through December 1990 William Williamson was
the president, Riley "Webb" Dickey was director of operations and
Bill Ernst was the chief pilot of Respondent IslandAir. All three
were responsible for hiring pilots. Pilots were hired in groups,
or "classes". Dickey and Ernst accepted resumes that were either
mailed or walked in, reviewed the resumes and informally
interviewed the applicants they felt were the best qualified.
Dickey scheduled applicants who passed the interview to take a
pilot response test and determined which applicants passed.
Ernst then gave applicants who passed the test an Aloha IslandAir
Application Form and asked them to provide copies of their
licenses and certificates so he could conduct background checks.
Final selections were made by Ernst and Williamson, and finalists
were invited to attend the next ground school class. If the
number of finalists exceeded the number of vacant positions, the
non-selected finalists were offered positions in the next ground
school class. Ernst also retained the resumes of the top
applicants for future classes. (Tr. at 580-582, 604-605, 609-611,
617-620, 643-650, 667-670, 678-681, 684-685; Ex. 16, Ex. 80 p. 8-
20, 33-39, 68-73, 82, 84)
7. Some time in June 1990, while attending the Hawaii
Pacific Air ground school, Complainant heard that IslandAir was
hiring pilots. Complainant decided to apply for a pilot
position with IslandAir because it was an established company, and
because he wanted to fly passenger planes and eventually advance
to a national or major airline. Complainant telephoned IslandAir
and spoke with Ernst about applying for a pilot job. Complainant
informed Ernst that he had flown DHC-6 planes for Samoa Aviation
and was currently certified to fly that plane. Ernst thought that
Complainant "sounded like someone they would want to hire" and
asked Complainant to speak to Dickey. Complainant had a short
interview with Dickey, who scheduled Complainant to take a pilot
response test. Complainant took this test on June 26, 1990.
Dickey determined that Complainant passed the test. Complainant,
however, was not hired in the July 1990 class. Some time prior to
August 25, 1990 Complainant again telephoned Ernst. Ernst offered
Complainant a position in the August 31, 1990 ground school class
and sent Complainant an application form. Ernst also asked
Complainant to send copies of his Samoa Aviation records, ATP
license and medical certificates. (Tr. at 31-32, 36-38, 516-517,
582-583, 617-620, 647-648, 666-670; Exs. 1A, 37, 73, Ex. 80 p. 24,
36-37)
8. Complainant was very happy to be offered a position in
Respondent's August ground school class. However, he became
concerned that if he quit his Hawaii Pacific Air job to accept the
IslandAir position, IslandAir might rescind its offer upon
learning that he was monocular, and he would be out of a job
altogether. Complainant decided to inform Ernst that he was
monocular. On or about August 26, 1990 Complainant telephoned
Ernst and stated that he was monocular. Ernst was surprised that
Complainant was monocular and still able to fly planes. Ernst had
never heard of a monocular pilot and felt that such pilots did not
have adequate field vision to see air traffic at night or in bad
weather. Ernst told Complainant that he would have to speak to
other IslandAir officials about Complainant's "condition", and
rescinded the offer to attend the August 31, 1990 ground school.
(Tr. at 37, 42, 203, 269, 517-519, 652; Ex. 80 p. 25-27, 29-31,
63-64)
9. Ernst then met with Dickey and Williamson. Ernst
stated that he thought it was very unusual for a monocular person
to be a pilot. Williamson decided that IslandAir should not hire
monocular pilots for insurance liability reasons. Ernst
telephoned Complainant and told him that IslandAir's insurance
would not allow them to hire monocular pilots, and that they would
not "pursue pilots with [such] condition at this time". Upon
hearing this, Complainant became very disappointed and
discouraged. He felt IslandAir didn't give him a chance to
demonstrate his abilities as a pilot. (Tr. at 49, 272-273, 281-
282, 519-520, 523, 655-656, 677-678, 684-685; Exs. 5, 46, 48, Ex.
80 p. 27)
10. IslandAir hired 6 pilots in its August 31, 1990 ground
school class. At least one of these pilots, Keith Kamemoto, was
less qualified than Complainant. Kamemoto had no experience as
a commercial pilot, did not have a 2 or 4 year college degree,
took the response test later than Complainant and scored lower on
this test. (Exs. 38, 39, 46, 48, 70, 73)
11. In November 1990 IslandAir hired another class of 6
pilots. Although Ernst retained Complainant's resume, he and
Williamson did not offer Complainant a position in this class
because Complainant was monocular. However, IslandAir hired at
least two pilots, David Vincent and Camm Willener, who were less
qualified than Complainant. Vincent, a former colleague of
Complainant's at Samoa Aviation, was 19 years old, did not have an
ATP license, did not have a two or four year college degree and
had less flight time than Complainant. Vincent also scored lower
than Complainant on the pilot response test. Willener also did
not have a college degree, had experience only as a flight
instructor, and took the response test later and scored lower than
Complainant. (Tr. at 50-52; Exs. 38, 39, 46, 48, 73, Ex. 80 p.
44-53, 61)
12. In December 1990 Dickey resigned from IslandAir. Ernst
and Williamson became solely responsible for hiring pilots. (Tr.
at 604; Ex. 80 p. 74-75, 82)
13. Some time around December 1990 or early January 1991,
Complainant heard that IslandAir had hired Vincent. Complainant
became upset because he felt he was more qualified than Vincent
and believed that IslandAir had discriminated against him because
he was monocular. (Tr. at 52-53, 209, 341-342, 351-352)
14. Some time in January 1991 Complainant telephoned Ernst
and asked if IslandAir still would not consider him because he was
monocular. Ernst told Complainant that Williamson had decided not
to hire monocular pilots. Complainant asked to speak with
Williamson. Ernst informed Complainant that Williamson had passed
away and that Lawrence Zimmerman, vice president of operations,
was in charge. Ernst gave Complainant Zimmerman's telephone
number. Ernst also informed Complainant that he [Ernst] was
transitioning back to being a line pilot and that Dave McCarty
would be the new chief pilot. (Tr. at 48-49, 277, 370-372; Ex. 77
p. 092)
15. Some time in early February 1991, Complainant contacted
the Hawaii Civil Rights Commission. He was sent a pre-complaint
questionnaire ("PCQ") form, which he filled out on or about
February 11, 1991. On or about March 12, 1991 HCRC investigator
Tony Rogers conducted an intake interview with Complainant.
Rogers instructed Complainant to confirm whether IslandAir still
would not hire monocular pilots. (Tr. at 52-54, 783-785; Ex. 5)
16. Some time in mid-March 1991 Complainant telephoned
Zimmerman and asked if IslandAir still would not consider his
application. Zimmerman stated that Williamson had made the
decision not to hire Complainant, but that he would look into the
matter. Later Zimmerman called Complainant and stated that
although Complainant was a good candidate, IslandAir would not
hire him or any other monocular pilot. (Tr. at 55, 279-280)
17. Complainant then informed Rogers of the above.
Complainant also asked Rogers to delay the filing of his complaint
because he still wanted to try to resolve the matter with
IslandAir by himself and because he was afraid that IslandAir and
other local airlines might blacklist him. (Tr. at 535-540, 771-
773; Ex. 77 p. 131-132)
18. After May 1991 Ernst became a line pilot. McCarty
became the new chief pilot in charge of hiring pilots. In July
1991 Respondent IslandAir formed a hiring committee consisting of
McCarty, Hans Linschoten (the new assistant chief pilot) and two
other pilots. Ernst gave the resumes he retained to McCarty, but
did not include Complainant's resume because Complainant was
monocular. Some time in mid-July 1991 the committee selected a
class of 9 pilots based on the resumes given to them by Ernst.
(Tr. at 55-56, 663-664, 710-711; Ex. 16, Ex. 77 p. 085, 086, 092,
142, Ex. 80 p. 9)
19. Some time in July 1991 Complainant heard that IslandAir
was again hiring pilots. On or about July 25, 1991 Complainant
telephoned IslandAir and spoke to Linschoten about being
considered for a pilot position. Linschoten stated that IslandAir
had just hired a class, but that Complainant's resume was not
among those given to him by Ernst. Complainant then informed
Rogers that he wanted to file his complaint against IslandAir.
The complaint was filed on August 22, 1991. (Tr. at 55-56, 280;
Ex. 8, Ex. 77 p. 085, 086, 092, 142)
20. Throughout this period (June 1990 - July 1991),
Complainant mailed updated resumes to IslandAir, but IslandAir did
not consider him because he was monocular. (Tr. at 54; Exs. 15,
25)
21. Some time after July 1991 IslandAir's hiring committee
devised a new procedure to screen and hire pilots because the
number of resumes it received far exceeded the number of vacant
positions. The committee created a "priority pool" consisting of
applicants who submitted resumes in person and listed current
IslandAir employees or other pilots known by the committee as
references. Resumes which were mailed in, or did not contain such
references were put in a separate file, which was periodically
thrown out. From some time after July 1991 through August 1994,
the committee only hired from this "priority pool" and did not
review resumes or hire from the other file. (Tr. at 712-713, 716-
719, 721-722; Exs. 28, T, EE, Ex. 77 p. 015, Ex. A to
Respondent's Motion for Summary Judgment as to 1994 claims filed
on February 5, 1999)
22. In September 1991 Lawrence Cabrinha became president of
IslandAir. Cabrinha became aware of Complainant's discrimination
charge and conducted an internal investigation of it. He spoke to
Ernst, McCarty and Linschoten about the charge. In late September
1991 Cabrinha established a formal policy of not hiring monocular
pilots because he felt that a person who was monocular could not
see as well as a binocular person. However, Cabrinha did not
conduct any tests or obtain any documentation to verify this.
Cabrinha notified McCarty and Linschoten about this policy.
IslandAir has maintained this policy to the present. (Tr. at 459-
473, 485, 495; Ex. 40)
23. From June 1990 until it closed in February 1993,
Complainant flew as a first officer with Hawaii Pacific Air. From
August 1993 to June 1994 Complainant was hired by Empire/Mahalo
Air Lines and was trained and certified to fly as a first officer
on its F-27 passenger planes. In June 1994 Mahalo Air Lines
took over that company and decided to fly ATR-42 passenger planes.
Mahalo offered to upgrade Complainant to a captain position if he
successfully completed training on the ATR-42. (Tr. at 59-63, 67-
74, 81-82, 266-297; Exs. 66, 69, C)
24. In September 1994, Mahalo sent Complainant to Flight
Safety Inc. to train as ATR-42 captain. The training consisted of
three parts: ground school, simulator training, and a flight test.
The flight test consisted of two parts: approximately 85% covered
emergency procedures, was conducted in a simulator and was known
as a "SIM check". Approximately 15% of the flight test was
conducted in the actual aircraft and was known as a "flight
check". Flight checks had to be taken within 30 days of a SIM
check. Complainant completed the ground school and simulator
training. However, he failed the SIM check twice and was
scheduled to retake certain portions of that test in November
1994. Mahalo decided not to allow Complainant to retake the PIC
SIM check. Instead, it offered Complainant a position as first
officer and asked him to take the SIC flight test. Complainant,
however, felt that one of the Flight Safety instructors had been
biased against him and had written derogatory comments in his
training records. Complainant stole his training records and
claimed he did not have them. He then accused the school of
losing his records and demanded to have them reconstructed. The
school complied, but the reconstructed records contained lower
ratings than the original records. Complainant then hired an
attorney, who arranged with Mahalo and Flight Safety to have
Complainant complete the ATR-42 PIC training. After completing
the training, Complainant feared that he might again fail the PIC
flight test and instead took the SIC flight test. Complainant
passed the SIM check for the SIC position, but failed the flight
check. Upon failing the SIC flight check, Mahalo terminated
Complainant. (Tr. at 83-102, 312-332, 523-524, 529-530; Exs. B,
C, D, E, F, G, AA, BB, CC, FF, GG, HH, II, JJ, KK, LL, MM)
25. After July 1991, IslandAir subsequently hired the
following classes of pilots: November 22, 1991 (8 pilots); January
15, 1992 (4 pilots); March 28, 1992 (2 pilots); May 23, 1992 (3
pilots); August 8, 1992 (3 pilots); May 4, 1994 (4 pilots); July
1, 1994 (2 pilots) and November 18, 1994 (6 pilots). Throughout
this period (post July 1991 - August 1994), Complainant continued
to mail updated resumes to Respondent IslandAir, but did not list
references. IslandAir did not hire him because it only hired
from its "priority pool". (Tr. at 74, 77-78; Exs. 25, 26, 28, 46,
48, T, EE; Ex.77 p. 015-018, 022-026; Ex. A to Respondent's
Motion for Summary Judgment as to 1994 claims filed on February 5,
1999)
26. On August 9, 1994 Complainant telephoned IslandAir and
again spoke to Linschoten, who was then chief pilot. Linschoten
informed Complainant that IslandAir had few open pilot positions
and only hired pilots who walked in their resumes and had
references. (Tr. at 78, 333-335, 339-340; Exs. 28, T, EE, Ex. 77
p. 015; Ex. A to Respondent's Motion for Summary Judgment as to
1994 claims filed on February 5, 1999)
27. On October 12, 1994 Complainant filed a second
complaint alleging that Respondent IslandAir failed to hire him
because of his disability and had retaliated against him. (Tr. at
78-79; Ex. 29)
28. After his termination from Mahalo Air Lines,
Complainant had a difficult time securing pilot positions. From
June 1995 to July 1995 Complainant was hired by Alpha Air for its
ground school class, but the company filed for bankruptcy and shut
down. From September 14, 1995 to September 1, 1996, Complainant
was hired by Rich International Airways and was trained and
certified to fly as a flight engineer on an L-1011 passenger
plane. Complainant accepted this position because Rich
International appeared to be a stable company, Complainant wanted
to fly jets, and he hoped to upgrade to a first officer position.
In September 1996 the FAA shut down Rich International. From
April 1997 to April 1998 Complainant periodically worked for
Orient Thai Airlines as a flight engineer on a L-1011 passenger
plane. From March 1998 to November 1998 Complainant worked for
Air Atlantic as a flight engineer on an L-1011. In between these
flying jobs, Complainant worked a variety of odd jobs to help
support his family. (Tr. at 21, 103-110; 196; Ex. 55)
29. Life as an itinerant pilot has been stressful for
Complainant and his family. Because he worked periodically,
Complainant did not have a steady income and his family had to
depend on his ex-wife's salary. This hurt Complainant's self-
esteem and created a financial strain on his family. Complainant
also saw many of his old colleagues advance to jobs with national
or major airlines, and became frustrated that he was not.
Complainant's pilot jobs on the mainland and abroad also created
strains on his marriage. He and his ex-wife separated in
September 1996 and divorced in March 1998. (Tr. at 200-206, 520-
522)
30. The career path for national or major airline pilots
who do not have military backgrounds typically progresses as
follows: flight instructor (to build up flight time); first
officer for a small regional airline (to obtain and build up turbo
prop time); upgrade from first officer to captain (moving from
"right" to "left" seat); and after building up another 1,000
flight hours as captain, one may then be qualified to apply for a
pilot position with a national or major airline. Such progression
is normally accomplished in 5-8 years. (Tr. at 132-135; Ex. 50)
31. Of the 22 pilots hired by IslandAir between August 1990
and July 1991, 4 are still flying with IslandAir, 11 have advanced
to positions with national airlines, and 4 have advanced to
positions with major airlines. Of the 3 pilots who were less
qualified than Complainant, Kamemoto and Vincent have advanced to
positions with national airlines and Willener has advanced to a
position with a major airline. Christopher Gardett, a pilot who
was hired in July 1991, is the same age as Complainant, has no
college degree and had comparable flight experience and response
test scores, is presently employed by a national airline. (Tr. at
714, 720-721; Exs. 39, 46, Ex. 80 p. 78-79)
32. The ideal candidate for a pilot position with a major
airline is: 30-40 years old; has an ATP license with a type
rating; has 3,000 - 6,000 hours total flight time; 1,000+ hours
of turbine time; and has a four year college degree. 92% of the
pilot applicants for major airlines have 4 year college degrees;
and 77% are under the age of 39. The major airlines also prefer
to hire pilots who have military training, or who are women or
minorities. (Tr. at 162, 165-169, 174; Exs. 50, 53)
33. The likelihood of Complainant being hired by a major
airline is very slight. Complainant does not have a 4 year
college degree, military training or a type rating. He is a white
male. In addition, if Complainant had been hired by IslandAir in
1991 (at the age of 38), he would be approximately 46 years old by
the time he qualified to apply for a position with a major
airline. Because the mandatory retirement age for pilots flying
major airlines is 60 years old, Complainant would only be able
to fly for 14 years. Most major airlines will not hire and train
pilots who are able to fly for such a short period of time. (Tr.
at 140-142)
34. Although Complainant failed his ATR-42 training, he
previously and subsequently passed training and obtained
certification for all other pilot positions he was offered. If
Complainant had been hired by IslandAir in August 1990, November
1990 or July 1991, he most likely would have been upgraded to
captain in 5 years and advanced to a first officer position with a
national airline in another 3 years. (Tr. at 98, 185-186, 720-
721; Exs. 2, 18, 46, 66, 67)


III. CONCLUSIONS OF LAW

A. JURISDICTION
1. Timeliness of the Complaint
During the investigation of this case and the contested case
hearing, Respondent IslandAir moved to dismiss the complaint as
untimely. Specifically, Respondent argues that the complaint was
filed on August 22, 1991, more than 180 days after Complainant was
denied a pilot position in August and/or November 1990.
H.R.S. sec. 368-11(c) states that:
No complaint shall be filed after the expiration of one
hundred eighty days after the date:
(1) Upon which the alleged unlawful
discriminatory practice occurred; or
(2) Of the last occurrence in a pattern of
ongoing discriminatory practice.
Complainant and the Executive Director argue that the
complaint was filed within 180 days of the last occurrence of a
continuing violation. Alternatively, they argue that the pre-
complaint questionnaire, which Complainant filed on February 11,
1991, constitutes a complaint pursuant to H.A.R. sec. 12-46-6(b) and
was filed within 180 days of Respondent's first refusal to hire
Complainant in August and/or November 1990.


a) whether Respondent committed a continuing violation
A refusal to hire may be a continuing violation if such
refusal is part of a series of discriminatory acts or part of an
ongoing policy or practice of discrimination. Mack v. Great
Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 49 EPD 38,882
(1st Cir. 1989) (continuing violations may be serial [succession
of related acts emanating from same discriminatory animus] or
systemic [continuing illegal policy or practice]); Roberts v.
North American Rockwell Corp., 650 F.2d 823, 26 EPD 31,885 (6th
Cir. 1981), Taylor v. USAir, Inc., 61 EPD 42,105 (W.D. Pa. 1991).
For instance, in Roberts, the Sixth Circuit concluded that a
plaintiff who submitted an application in December 1972 and was
repeatedly told, from December 1972 through August 1973, that she
would not be hired because she was a woman, was subjected to an
ongoing policy of discrimination. 26 EPD 31,885 at 20,956-20,959.
The court stated:
First, by definition, if there is a continuing
violation, the company is continually violating Title
VII so long as its discriminatory policy remains in
effect. An applicant for employment . . . will, in
many circumstances, be interested in any suitable
position which opens up. As job openings become
available, the applicant will automatically be rejected
because of his/her race, sex or national origin. . . .
We do not think that Title VII requires that suit be
filed when the applicant is initially discriminated
against. If an ongoing discriminatory policy is in
effect, the violation of Title VII is ongoing as well.

Id. at 20,958. The court found that plaintiff made a number of
oral inquiries about her application (which showed that she was
continually applying for a position at the plant), and was
continually rejected because of her sex. In Taylor, the district
court of Pennsylvania held that USAir's ongoing practice of
refusing to hire a Black pilot applicant amounted to a continuing
violation where the pilot's application remained on file with
USAir from 1978 through 1988, was regularly updated by the him,
and USAir never called him for an interview, though it interviewed
and hired less qualified white applicants. 64 EPD 42,105 at
74,418, 74,425.
Like Roberts and Taylor, the evidence in the present case
shows that the August 22, 1991 complaint was filed within 180 days
after the last occurrence of an ongoing discriminatory practice.
Complainant credibly testified, and the record shows, that he
continuously mailed his updated resume at least once every three
months (and sometimes more often) to Respondent from June 1990
through June 1994. (Tr. at 54, 74, 77-78; Exs. 15, 25, 26, Ex. 77
p. 016-018, 022-026, 040, 090) Ernst testified that from at least
August 1990 through May 1991 (prior to the formation of the hiring
committee) Complainant's resumes were accepted as applications and
were retained. (Ex. 80 p. 44-45, 61)
The weight of the evidence also shows that at least through
July 1991 Respondent IslandAir repeatedly refused to hire
Complainant because he was monocular. Complainant and Tana Pied
(Complainant's ex-wife) testified that Ernst called Complainant
and rescinded the offer to attend the August 1990 ground school
after Complainant disclosed his monocular vision. (Tr. at 37, 519)
Complainant credibly testified that he spoke to Ernst again in
January 1991, after hearing that Vincent had been hired. The
record shows that Vincent was hired on November 26, 1990. (Exs.
46, 48) Complainant testified that during this January 1991
discussion, Ernst reiterated that IslandAir would not hire
monocular pilots. Complainant then asked to speak to someone in
management; Ernst informed him that Williamson had passed away and
Zimmerman was in charge. The record shows that Williamson passed
away in November 1990 and Zimmerman thereafter took over the day
to day operations of IslandAir. (Tr. at 633-634) Complainant
also informed Rogers of this conversation some time in 1991. (Ex.
77 p. 092) In addition, Complainant credibly testified that he
spoke to Zimmerman in March 1991, and that Zimmerman confirmed
that IslandAir would not hire him [Complainant] because he was
monocular. Zimmerman testified that he was the vice president in
charge of the day to day operations of IslandAir in March 1991.
(Tr. at 633-634) The conversations were also noted in
Complainant's log, and were reported to Rogers. (Ex. 77 p. 014,
131, 136) Finally, the evidence shows that after May 1991 Ernst
did not forward Complainant's resume to the hiring committee
because Complainant was monocular. (Tr. at 56, 663; Ex. 77 p.
092, 142)
IslandAir argues that Complainant lacks credibility because:
1) his accounts of his interactions with Ernst, Dickey, Zimmerman
and Linschoten were inconsistent; 2) his testimony that King,
Ernst and Dickey made favorable comments about his response test
scores were clearly refuted by those persons; 3) he stole his
Flight Safety Inc. training records and lied about and concealed
them until the day of the hearing; and 4) he inflated his flight
times on his resumes and Airman Certificate forms. While
Complainant's theft and concealment of his training records are
serious transgressions, I find that his testimony regarding the
general sequence and content of his interactions with IslandAir to
be credible. This is because those portions of his testimony are
consistent with other undisputed factual events and IslandAir's
hiring practices during the period between June 1990 and July
1991. (see, discussion above and in section III.B.2., infra.)
Although at times Complainant became confused, embellished and
guessed at certain dates and specific events, this is
understandable, given they occurred almost 10 years ago. Other
witnesses such as Ernst, Dickey, Zimmerman and Linschoten also
could not recall dates and events.
Respondent IslandAir also argues that there is no continuing
violation because: a) it had no formal policy against hiring
monocular pilots until September 1991; and b) Complainant and
the Executive Director abandoned all claims based on the 1990
events because: (i) the complaints do not mention any events
which occurred in August or November 1990; (ii) the HCRC did not
investigate any events which occurred in August or November 1990;
and (iii) IslandAir received no notice that the complaints
encompassed the August and/or November 1990 events.
These arguments lack merit. Regardless of whether IslandAir
had a formal policy of not hiring monocular pilots, the evidence
shows that prior to September 1991, IslandAir had a continuing
discriminatory practice of refusing to hire and consider
Complainant's applications because he was monocular. In addition,
the record shows that the HCRC Enforcement Section did view the
complaints to include allegations of a continuing violation. By
December 4, 1992 an HCRC investigator informed IslandAir's counsel
that the Enforcement Section considered the complaint to be a
continuing harm from the date Complainant sent in his first
resume. (Ex. 77 p. 101) The second complaint, filed on October
12, 1994, makes reference to events which occurred in August 1990
and also alleges that Complainant applied several times for a
pilot position. (Ex. 78 p. 056-057) The pleadings in the related
federal court case contain allegations relating to events which
occurred in August 1990 (Exs. 42, 87, OO, PP) and the notices of
Finding of Reasonable Cause filed on November 19 and 21, 1997
allege a "continuing harm". (Exs. 35, 36) Furthermore,
IslandAir has raised and litigated the issue in these proceedings.
See, Respondent's Motion for Summary Judgment on the issue of
timeliness of charge, filed on February 5, 1999; Respondent's
Motion to Dismiss, Tr. at 552-575) IslandAir therefore had notice
of the continuing violations claim and was not prejudiced by any
failure to explicitly state such claim in the complaints.
I therefore conclude that Respondent's refusal to hire
Complainant because of his monocular vision was an ongoing
discriminatory practice which continued from at least August 1990
through July 1991. The August 22, 1991 complaint was filed within
180 days of July 1991. The Commission therefore has jurisdiction
over this complaint.


b) whether the pre-complaint questionnaire
was a timely complaint

H.A.R. sec. 12-46-6(b) states:

Notwithstanding the provisions of subsection (a), a
complaint is deemed filed if the commission receives
from an individual a written statement sufficiently
precise to identify the parties and describing with
reasonable accuracy the action or practices alleged to
be unlawful.

Complainant and the Executive Director alternatively argue
that Complainant's PCQ, which was filed on February 11, 1991
satisfies the requirements of H.A.R. sec. 12-46-6(b) and constitutes
a complaint filed within 180 days after Complainant was denied a
job in August and/or November 1990.
Federal courts have held that the filing of an EEOC intake
questionnaire may constitute the filing of an EEOC charge where
there is evidence that a complainant intended to activate the
investigative process, or where the EEOC treated the questionnaire
as a charge. Philbin v. General Electric Capital Auto Lease,
Inc., 929 F.2d 321, 56 EPD 40,674 at 66,515-66517 (7th Cir. 1991)
(intake questionnaire may constitute a charge where information
contained therein was sufficient, plaintiff intended to activate
the investigative process with the filing of the questionnaire and
EEOC treated questionnaire as charge); Casavantes v. California
State University, Sacramento, 732 F.2d 1441, 34 EPD 34,384 (9th
Cir. 1984) (plaintiff's intake questionnaire, filled out 248 days
after his notice of termination, was a timely filed charge when
EEOC sent formal charge document more than 300 days after
plaintiff's notice of termination and EEOC treated questionnaire
as a filed charge).
In the present case, Complainant's PCQ contains sufficient
information to meet the requirements of H.A.R. sec. 12-46-6(b).
However, the weight of the evidence shows that Complainant did not
intend to activate the HCRC investigative process when he filed
the PCQ, and the Enforcement Section did not treat the PCQ as a
complaint. Instead, the evidence shows that Complainant
deliberately delayed the filing of his complaint until July 1991.
Rogers testified that Complainant wanted to keep trying to resolve
the matter himself. (Tr. at 772-773) Tana Pied testified that
Complainant agonized over whether he should file a formal
complainant because he feared that word would get out among the
local airlines and he would be blacklisted. (Tr. at 535-540)
Furthermore, the first page of Complainant's PCQ contains a box
titled "For Office Use Only" with a section labeled "ACTION
TAKEN". Rogers and HCRC investigator Charles Nation testified
that if a complaint was to be filed, they would fill in the words
"accepted" or "taken" in that section. (Tr. at 754-755, 786)
However, Complainant's PCQ contains the notation "pending". (Ex.
5) Rogers specifically noted that the case was a "Pending
Complaint will call in June if I don't hear from Cp". (Ex. 77 p.
131).
Because Complainant did not intend to activate the
investigative process with the filing of his PCQ and the HCRC
Enforcement Section did not view his PCQ as a complaint, I
conclude that the PCQ does not constitute a timely filed complaint
pursuant to H.A.R. sec.sec. 12-46-5 and 12-46-6(b).


2. Respondent IslandAir
H.R.S. sec. 378-1 defines "employer" to mean
. . . any person, including the State or any of its
political subdivisions and any agent of such person,
having one or more employees, but shall not include the
United States.

Respondent IslandAir is a corporation which has one or more
employees. I therefore conclude that Respondent is an employer
under H.R.S. sec. 378-1 and is subject to the provisions of H.R.S.
Chapter 378.


B. DISABILITY DISCRIMINATION
H.R.S. sec. 378-2(1)(A) makes it an unlawful discriminatory
practice for any employer to refuse to hire, discharge or
otherwise unequally treat an individual because of that
individual's disability.
In the case of Tseu on behalf of the complaint filed by Aho
vs. Department of Parks and Recreation, Docket No. 94-002-E-D
(December 20, 1994) this Commission held that its disability rules
(H.A.R. subchapter 9, sec.sec. 12-46-181 through -196), which were
adopted on August 18, 1994, would not be applied to discriminatory
conduct which occurred prior to that date. Instead, the
Commission looked to case law under both the Rehabilitation Act of
1973 (29 U.S.C. sec. 701 et. seq.) and Title VII (42 U.S.C. sec. 2000e
et. seq.) to interpret the disability provisions of H.R.S. Chapter
378.


1. Direct Evidence of Disability Discrimination
Discrimination under H.R.S. Chapter 378 may be established by
direct evidence of discriminatory intent. In Re Smith / MTL, Inc.
et. al., Docket No. 92-003-PA-R-S (November 9, 1993) (bus driver's
use of the terms "nigger" "Black thing" and "mama" were direct
evidence of driver's intent to discriminate against Black female
passenger); EEOC v. Alton Packaging Corp., 901 F.2d 920, 53 EPD
39,932 at 62,558 (11th Cir. 1990) (manager's statement that if it
were his company "he wouldn't hire any black people" was direct
evidence of discrimination in failure to promote Black plaintiff).
In disability discrimination cases, the Executive Director and/or
complainant are required to show: a) that Complainant is a
qualified person with a disability; and b) direct evidence of
discriminatory intent.
Once the Executive Director/complainant presents the above,
the burden of proof shifts to the respondent to either: a) rebut
such evidence by proving that it is not true; b) establish an
affirmative defense; or c) limit, but not avoid, liability by
showing mixed motives for the adverse action (i.e., proving by a
preponderance of the evidence that it would have acted as it did
without regard to the complainant's protected status). See,
Smith, supra; Vaughn v. Edel, 918 F.2d 517, 55 EPD 40,455 at
65,237 (5th Cir. 1990); EEOC v. Alton Packaging Corp., supra.

a) whether Complainant has a disability

H.R.S. sec. 378-1 defines disability to mean
the state of having a physical or mental impairment
which substantially limits one or more major life
activities, having a record of such an impairment, or
being regarded a having such an impairment.

Department of Justice (DOJ) regulations implementing sec. 504
define "physical or mental impairment" to mean(i) Any
physiological disorder or condition, cosmetic disfigurement or
anatomical loss affection one or more the following body systems:
Neurological; musculoskeletal; special sense organs; . . .

(iii) The term physical or mental impairment includes
but is not limited to such diseases and conditions as
orthopedic, visual, speech and hearing impairments . .
.

28 CFR 41.31(b)(1)(i) (1978)

DOJ regulations also define "major life activities" to
mean
. . . functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working.

28 CFR sec. 41.31(b)(2) (1978)
The DOJ regulations do not define the term "substantially
limits". I therefore will interpret these terms according to
their ordinary meanings. Webster's Ninth New Collegiate
Dictionary (1991) defines "substantial" to mean: consisting of or
relating to substance; important, essential. It defines "limit"
to mean: to curtail or reduce in quantity or extent. Therefore,
in order to be "substantially limiting", a physical or mental
impairment must curtail or reduce the quantity or extent to which
a person performs a major life activity in an important or
essential way.
Given the above, I conclude that Complainant Pied was and is
a qualified person with a disability. Complainant testified that
he lost sight in his left eye when he was eighteen years old.
This is an anatomical loss of a special sense organ and
constitutes a physical impairment. The evidence also shows that
such impairment curtails Complainant's major life activity of
seeing in an important or essential way. Complainant testified
that he has to cock his head to the left to center his vision, he
lacks 15% peripheral vision on both sides, and does not have
stereopsis, or three-dimensional vision. He cannot perceive the
depth of objects that are very close to him and perceives depth of
other objects without stereopsis.
b) whether IslandAir regarded Complainant as disabled
Alternatively, Complainant and the Executive Director argue
that Respondent IslandAir regarded Complainant as being disabled.
DOJ regulations define the phrase "is regarded as having an
impairment" to mean
(i) Has a physical or mental impairment that does not
substantially limit major life activities but is
treated by a recipient as constituting such a
limitation;

(ii) Has a physical or mental impairment that
substantially limits major life activities only as a
result of the attitudes of others toward such
impairment; or

(iii) Has none of the impairments defined in paragraph
(b)(1) of this section but is treated by a recipient as
having such an impairment.

28 CFR sec. 41.31(b)(4).
The weight of the evidence also shows that IslandAir regarded
Complainant as being substantially limited in the major life
activity of seeing. Ernst was surprised that a person with
monocular vision could even fly an airplane. (Tr. at 655-656,
719-720) He believed that a monocular person had a more limited
"field of vision" than a binocular person and would have
difficulty seeing air traffic at night or in bad weather, and
would not be able to assist or relieve a pilot in command should
the captain become incapacitated. (Ex. 46, Ex. 80 p. 29-31, 63-
64)


c) whether Complainant was qualified
Complainant was qualified for the IslandAir pilot position.
He had an ATP license and a first class medical certificate with a
vision waiver. (Ex. 72) When he was employed with Samoa
Aviation, Complainant became certified in and flew the exact same
plane IslandAir utilized. In addition, he has been certified and
has flown as a first officer on larger and more complex passenger
planes. (Tr. at 60-61, 72-74; Exs. 18, 66, 67, 69)


d) direct evidence of discriminatory intent
In August 1990, Ernst invited Complainant to attend
IslandAir's August 31, 1990 ground school class. The weight of
the evidence shows that after Complainant disclosed his monocular
vision, Ernst told Complainant that IslandAir's insurance would
not allow them to hire monocular pilots and that IslandAir would
not pursue pilots with such "condition at this time". In January
1991 Ernst informed Complainant that Williamson made the decision
not to hire monocular pilots. In March 1991 Zimmerman informed
Complainant that IslandAir was continuing such practice. These
statements to Complainant constitute direct evidence of
discriminatory intent.

e) Respondent's defenses
IslandAir denies that Ernst and Zimmerman made such
statements and argues that Complainant is not credible. However,
for the reasons discussed in Section III.A.1.a. above, I find that
Complainant and Tana Pied's testimonies regarding these statements
credible. IslandAir did not present any affirmative defenses or
mixed motives for its actions. Thus, I conclude that there is
direct evidence of IslandAir's intent to discriminate based on
Complainant's disability.


2. Circumstantial Evidence of Disability Discrimination

Discrimination under Chapter 378 may alternatively be
established by circumstantial evidence. In the present case, if
the Commission concludes that there is no direct evidence of
discriminatory intent, the Complainant and Executive Director must
establish a prima facie case of disability discrimination by
proving that:
a) Complainant is a qualified individual with a
disability;
b) Complainant applied for a job with Respondent;
c) Respondent used medical criteria which screened out or
otherwise denied employment to Complainant based on his
disability.
Aho, supra; Prewitt v. United States Postal Service, 662 F.2d
292, 27 EPD 32,251 at 22,822 (5th Cir. 1981); Bey v. Bolger, 540
F.Supp. 910, 33 EPD 33,967 at 31,576 (E.D. Pa. 1982).
The burden then shifts to Respondent IslandAir to prove:
a) that it had a non-discriminatory reason for not hiring
Complainant; or b) some other affirmative defense. H.R.S. sec.
378-3; Aho, supra; Tseu on behalf of the complaint filed by Cole
vs. Treehouse Restaurant, Docket No. 95-002-E-A-D-RET (May 2,
1996); Prewitt, supra; Bey, supra.


a) prima facie case
Complainant and the Executive Director met their burden of
establishing a prima facie case of disability discrimination.
As discussed above, Complainant was and is a qualified person with
a disability. The record also shows that from June 1990 through
July 1991 Complainant continuously sent in his resumes and applied
for pilot positions with IslandAir and that, at least through May
1991, IslandAir retained his resumes. (See discussion in section
III.A.1.a, supra.) The weight of the evidence also shows that
Ernst offered Complainant a position in the August 1990 class.
Complainant timely applied for that class in June 1990, and
successfully passed the interview and pilot response test by June
26, 1990. (Exs. 37, 73; see also discussion in section
III.B.2.b., below.) Ernst sent Complainant an application form
and asked for copies of Complainant's licenses on or about August
25, 1990. (Ex. 1A) Ernst testified that this was usually done at
the end of the hiring process and the record shows that many new
hirees completed and submitted this application at the time they
started ground school. (Tr. at 667-668; Ex. 39, Ex. 80 p. 17-18,
71-72) Tana Pied testified that Complainant stated that IslandAir
offered him a position. (Tr. at 517)
Finally, Complainant and the Executive Director have shown
that Complainant was rejected because he was monocular.
Complainant and Tana Pied testified that after Complainant
disclosed his monocular vision to Ernst, Ernst rescinded the offer
to attend ground school. (Tr. at 37, 519) Thereafter, although
Complainant continued to submit resumes, he was not hired by
IslandAir. IslandAir continued to hire pilots who were not
monocular, and hired as least three pilots (Kamemoto, Vincent and
Willener) who were not as qualified as Complainant. (Exs. 38, 39,
46, 48)

b) whether Respondent had a legitimate, non-discriminatory
reason for not hiring Complainant
i. 1990 - July 1991 (first period)
Respondent IslandAir did not meet its burden proving that it
had a legitimate, non-discriminatory reason for not hiring
Complainant during the period from August 1990 through July 1991.
IslandAir argues that it had already selected the members of
the August 1990 class by the time Complainant applied for that
class. However, the record shows that Complainant took the pilot
response test on June 26, 1990. Thus, Complainant must have
submitted his resume and passed the initial interview prior to
June 26, 1990. The record also shows that all the members of the
July 1990 class submitted their application forms after June 26,
1990, as did all but one of the members of the August 1990
class. Therefore, IslandAir did not select the August 1990 class
at the time Complainant first applied in June 1990.
In addition, Complainant's application was timely for the
November 1990 class. The record shows that the resumes of two
members of the November 1990 class were received after
Complainant's. Correspondence from Darcy Vernier indicates that
Vernier submitted his resume on or near October 12, 1990;
Vincent's resume contains a handwritten notation indicating that
it was received on September 14, 1990. (Ex. 39) Ernst agreed that
Complainant had timely applied for the November 1990 class. (Tr.
at 687; Ex. 80 p. 44-45, 61) Ernst could not state a reason why
Complainant was not interviewed or selected for this class. (Tr.
at 686-687; Ex. 80 p. 47-48) Cabrinha, who as President of
IslandAir later conducted an investigation of Complainant's
discrimination charge, testified that he could not determine why
Complainant was not hired or interviewed for this class. (Tr. at
461-463)
IslandAir also contends that Complainant was not selected in
the August and November 1990 classes because he did not interview
favorably with Dickey. However, Dickey testified that he was the
sole person responsible for scheduling pilot response tests, and
would not have IslandAir pay for an applicant to take such test
unless he was interested in that applicant. (Tr. at 618-620)
Ernst confirmed that IslandAir would not have sent Complainant to
take the response test unless it was interested in hiring him.
(Tr. at 685-686) It is undisputed that Complainant took the
pilot response test on June 26, 1990 at the request of IslandAir.
Ernst also testified that he would not have sent anyone an
application form unless he and Dickey discussed and approved that
applicant. (Tr. at 667-668) It is undisputed that Ernst sent
Complainant an application form on August 25, 1990. (Ex. 1A)
Therefore, Complainant must have interviewed favorably with
Dickey.
Finally, IslandAir argues that Complainant was not hired in
the July 1991 class because the newly formed hiring committee only
selected pilots from a "priority pool" (i.e., applicants who had
walked in their resumes and named IslandAir employees or pilots
known by the committee as references). However, the weight of the
evidence shows that the committee, at least initially for the July
1991 class, did not follow this procedure and instead hired from
the resumes given to them by Ernst. Ernst testified that he gave
the resumes he retained to McCarty. (Tr. at 664) Linschoten
testified that he and the committee were not involved in hiring
until July 1991. (Tr. at 711-712) The record shows that the July
1991 class consisted of 9 pilots and commenced ground school on
July 29, 1991. (Exs. 46, 48) Therefore, the July 1991 class must
have been selected around mid-July 1991. Linschoten testified
that the committee did not use any of the resumes on file with
Ernst. (Tr. at 714, 716) However, if the committee did not use
the resumes retained by Ernst, it would have had to recruit,
interview, test, and select walk-in applicants with
recommendations within a period of two weeks, which is highly
unlikely. In fact, the record shows that two of the July 1991
class members, Christopher Gardett and Kathy O'Brien, submitted
their applications (and thus, their resumes) prior to July 1991
(May 15, 1991 and June 7, 1990, respectively). (Ex. 39) These
applications do not list any references, and Linschoten could not
recall any. (Tr. at 714; Ex. 39) Complainant also testified and
informed Rogers that Linschoten stated he was not considered for
the July 1991 class because Ernst didn't forward his resume to the
committee. (Tr. at 56; Ex. 77 p. 092) Finally, IslandAir's
October 21, 1991 response to the complaint makes no mention of a
"priority pool" or that the hiring committee only selected from
such pool. (Ex. 16) For these reasons, I conclude that
Respondent's reason for not hiring Complainant in the July 1991
class is not credible.
ii. post July 1991 - July 1994 (second period)
The weight of the evidence shows that some time after July
1991 IslandAir's pilot hiring committee adopted new hiring
procedures and only selected applicants from its "priority pool".
During the August 9, 1994 telephone conversation between
Linschoten and Complainant (which Complainant tape recorded)
Linschoten mentioned these new procedures. (Exs. T, EE; Ex. A to
Respondent's Motion for Summary Judgment as to 1994 claims filed
on February 5, 1999) Shortly afterwards, Complainant also
reported this to Rogers. (Ex. 28, Ex. 77 p. 015) Therefore, some
time after July 1991, Respondent did not consider Complainant's
application because Complainant was not in the "priority pool"
(i.e., he did not walk in his resume or list IslandAir employees
or pilots known to the committee as references).


c) other affirmative defenses
As stated in Section III.B.1.e. above, IslandAir did not
present any other affirmative defenses. IslandAir therefore
failed to rebut the presumption of discrimination raised by
Complainant's and the Executive Director's prima facie case, and I
conclude that there is circumstantial evidence of IslandAir's
intent to discriminate based on Complainant's disability.

C. LIABILITY
Because Respondent IslandAir refused to hire Complainant Pied
as a pilot during the period August 1990 - July 1991 solely
because of his disability, I conclude that it is liable for
violating H.R.S. sec. 378-2.

D. REMEDIES

1. Placement of Complainant Pied in a Pilot Position
Complainant and the Executive Director seek placement of
Complainant into a first officer pilot position. Because
Complainant is a qualified person with a disability, I determine
that Respondent should be ordered to place Complainant in the next
IslandAir ground school class that includes first officer pilots.


2. Back Pay
Back pay encompasses the amount Complainant would have earned
if he had been hired by IslandAir. Respondent has the burden to
prove any offsets to Complainant's expected earnings.
The evidence shows that Complainant would have been hired as
a first officer with IslandAir on August 31, 1990. The evidence
also shows that Complainant would have advanced to captain in 5
years, and to a first officer position with a national airline in
another 3 years. Christopher Gardett, a pilot hired by IslandAir
in July 1991, who is the same age as Complainant, has no college
degree or military experience and has comparable flight experience
and response test scores, is presently employed by Hawaiian Air
Lines. (Tr. at 720, Ex. 48, Ex. 80 p. 79)
I therefore determine that Respondent should be ordered to
pay Complainant back pay in the amount he would have earned as a
first officer for the period beginning August 31, 1990 through
August 31, 1995; as a captain from August 31, 1995 through August
31, 1998; and first officer with a national airline from August
31, 1998 until his placement in an Islandair ground school class.
This amount should include the value of any benefits Complainant
would have received and should be reduced by the amounts
Complainant earned and the value of any benefits he received from
August 31, 1990 to his placement. This loss amount should be
adjusted to account for any income taxes assessed. Complainant
should also be awarded prejudgment interest on this loss amount at
the rate of 10% per year until the date of the Commission's final
decision in this matter.
IslandAir argues that Complainant failed to mitigate his
damages when he refused to accept a first officer position with
Mahalo Air Lines in June 1994. However, the record shows that
Complainant attempted to pass both the PIC and SIC ATR-42 training
but failed his SIC flight check, which caused his termination.
Subsequently, he accepted and successfully completed training for
every pilot position he was offered. I therefore conclude that
Complainant made reasonable efforts to mitigate his damages.

3. Front Pay
Because I find that Complainant would have become a first
officer with a national airline by August 31, 1998, I determine
that Respondent should be ordered to pay Complainant the
difference between what he would have earned as a first officer
with a national airline and what he earns as a first officer with
IslandAir until Complainant obtains a first officer position with
a national airline or until he reaches age 60.

4. Compensatory Damages
Complainant and the Executive Director request that
Respondent be ordered to pay Complainant compensatory damages in
the amount of $270,000 ($30,000/year for 9 years) for the
emotional distress he suffered.
Pursuant to H.R.S. sec. 368-17(a)(8), the Commission has the
authority to award compensatory damages for emotional distress
Complainant suffered as a result of Respondent IslandAir's
actions. Complainant and the Executive Director must demonstrate
the extent and nature of the resultant injury and Respondent must
demonstrate any bar or mitigation to this remedy.
The evidence shows that Complainant was very disappointed
after Ernst rescinded the offer to attend the August 31, 1990
ground school. Complainant was also upset after he heard that
IslandAir had hired Vincent, who had less experience than
Complainant. Since June 1994, for approximately 5 years
Complainant has struggled to find work as a pilot and has had to
live away from his family to accept jobs on the mainland and in
Thailand and England. This also caused serious financial stress,
a loss of self-esteem, frustration and contributed to the break up
of his marriage. Considering these circumstances, I determine
that $150,000 is appropriate compensation for injury to
Complainant's feelings, emotions and mental well-being.


5. Punitive Damages
H.R.S. sec. 378-17(a) also authorizes the Commission to award
punitive damages. Punitive damages are assessed in addition to
compensatory damages to punish a respondent for aggravated or
outrageous misconduct and to deter the respondent and others from
similar conduct in the future. See, Tseu on behalf of the
complaint filed by Gould, v. Dr. Robert Simich et. al., Docket No.
950-12-E-SH (October 29, 1996); Masaki v. General Motors Corp., 71
Haw. 1, 6, 780 P.2d 566 (1989). Complainant and the Executive
Director are required to show, by clear and convincing evidence,
that Respondent acted wantonly, oppressively or with such malice
as implies a spirit of mischief or criminal indifference to civil
obligations, or that there has been some wilful misconduct or
entire want of care which would raise the presumption of a
conscious indifference to consequences. Id.
In Title VII cases, federal courts have found reckless
indifference to a plaintiff's civil rights and awarded punitive
damages in cases where defendants deliberately gave false reasons
or attempted to cover up their discriminatory conduct.
Merriweather v. Family Dollar Stores of Indiana, Inc., 103 F.3d
576, 69 EPD 44,479 at 87,699 (7th Cir. 1996) (district court could
infer reckless indifference to plaintiff's civil rights and award
punitive damages because defendant deliberately gave false reasons
for firing plaintiff); EEOC v. Wal-Mart Stores, Inc., 156 F.3d
989, 77 BNA 1611, 1614-1615 (9th Cir. 1998) (evidence regarding
managers' attempts to cover up their discriminatory conduct
supports claim of reckless indifference to plaintiff's federal
protected rights and issue of punitive damages should have been
submitted to jury); see also, EEOC Policy Statement No. 915.002,
Compensatory and Punitive Damages Under Section 102 of the Civil
Rights Act of 1991, EEOC Compliance Manual, Section 603 par. 2062
(July 14, 1992) (evidence that a respondent planned and/or
attempted to conceal or cover-up discriminatory practices or
conduct can support a finding that respondent acted with malice or
reckless indifference). I therefore conclude that this
Commission may similarly find an "entire want of care which would
raise the presumption of a conscious indifference to consequences"
and award punitive damages in cases where respondents deliberately
give false reasons or attempt to cover up their discriminatory
conduct.
In the present case, there is clear and convincing evidence
that Respondent IslandAir attempted to cover up its discriminatory
practices by concocting various reasons for not hiring
Complainant. Up until January 1999, IslandAir admitted it had a
policy of not hiring monocular pilots from at least August 1990
through the present, and that it rejected Complainant because he
was monocular. In the related federal case, the Executive
Director alleged that Complainant applied for and was denied a
position from August 1990 through July 25, 1991 and from May 1994
through August 9, 1994. (see, Defendant Tseu's Concise Statement,
attached as Ex. 10 to Complainant's Motion for Summary Judgment
filed on February 5, 1999) IslandAir did not dispute these
allegations and submitted an affidavit from Cabrinha stating,
inter alia, that he was President of IslandAir from September 1,
1991 through March 31, 1995 and that "[a]t all times while I was
President at Islandair, Islandair would not hire monocular . . .
pilots." (see, Plaintiff Aloha Islandair, Inc.'s Concise
Statement attached as Ex. 11 to Complainant's Motion for Summary
Judgment filed on February 5, 1999; Ex. 40). Based on these
allegations and the affidavit, the District Court, in an order
drafted by IslandAir's counsel, found, inter alia,
It is undisputed for the purposes of this Motion that
Pied applied to Islandair in 1991 and 1994. Islandair
had at all relevant times a policy of not hiring
monocular pilots". (Ex. H)

In its answers to Complainant's First Request for Admissions dated
December 9, 1998, IslandAir admitted that "Pied did not meet Aloha
Islandair's minimum pilot qualifications of having 20/20 corrected
vision in both eyes" and "Aloha Islandair's policy in August
1991 was not to hire pilots who did not have 20/20 corrected
vision in both eyes or did otherwise not meet Aloha Islandair's
minimum pilot qualification requirements." (Ex. 45) In its
draft, unsigned response to Complainant's First Request for
Answers to Interrogatories also dated December 9, 1998, IslandAir
states in response to interrogatory #3
Prior to 1989, Aloha Islandair determined that pilots
need to have 20/20 corrected vision in both eyes. To
the best of IslandAir's knowledge, the policy was
established by its first President James I. Williamson
who is deceased.

IslandAir's draft answer to interrogatory #10 states that
Complainant Pied was not hired, in whole or in part, because he
did not have 20/20 corrected vision in both eyes, and its draft
answer to interrogatory #17 states that IslandAir does not believe
that the essential job functions of a pilot can be performed by
someone who does not have 20/20 corrected vision in both eyes.
(Ex. 46)
After December 1998 IslandAir claimed that its policy was not
established until the end of September 1991 and did not exist
prior to that date. (Tr. at 464-466) On January 27, 1999 it
amended its answers to interrogatories to reflect this change and
to allege that Complainant was not hired in 1990 because he had
not timely applied. (Tr. at 496-497; Ex. 48) Wing, the
IslandAir director of administration, testified that he prepared
the draft answers (Ex. 46) based on information provided by
Patricia Pedro, IslandAir's manager of human resources. (Tr. at
488-490) Pedro at first denied that she aided Wing in preparing
the draft responses to interrogatory numbers 3, 10 and 17. (Tr.
at 802-807, 809-810) She later admitted that she assisted Wing
with these interrogatories by "finding information".
Specifically, Pedro testified that she spoke to Ernst about
interrogatory #3 and that Ernst provided the information in the
draft response. (Tr. at 808, 812-813) Pedro then contradicted
herself and testified that Ernst did not provide this information
and that she and Wing somehow put the answer together. (Tr. at
813-815) Wing testified that he changed the draft answers solely
based on discussions with IslandAir's counsel, who became aware of
new facts. The changes were not based on any records or further
discussions with Pedro or any other IslandAir employees. (Tr. at
490-491, 494-495, 502-503, 507-509)
Other IslandAir managers were also not forthright. During
his deposition, Ernst confirmed that Complainant timely applied
for the November 1990 ground school class but could not give a
reason why Complainant wasn't considered. (Tr. at 686-687; Ex.
80 p. 47-48). Later at the contested case hearing Ernst testified
that Complainant probably wasn't considered because he interviewed
poorly with Dickey. (Tr. at 656-658) Cabrinha, who as president
of IslandAir conducted an internal investigation of Complainant's
discrimination charge, incredibly testified that he never
determined why Complainant was not hired. (Tr. at 461-463)
Given the above, I conclude that Respondent IslandAir
deliberately attempted to cover up and conceal its discriminatory
conduct. Complainant should therefore be awarded punitive
damages, the amount to be determined after the Commission's final
decision in this case.


6. Attorneys' Fees and Costs
Pursuant to H.R.S. sec. 368-17(a)(9) the Commission may order
payment to the Complainant of all or a portion of the costs of
maintaining an action, including reasonable attorneys' fees and
expert witness fees. However, attorneys' fees cannot be awarded
in addition to punitive damages; rather they must constitute the
whole of the punitive damage award or be accounted for as a
portion of the total punitive damage award. Lee v. Aiu, 85 Haw.
19, 35, 936 P.2d 655 (1997); Romero v. Hariri, 80 Haw. 450, 459-
460, 911 P.2d 85 (1996). I therefore recommend that Complainant
should be awarded his reasonable costs, the amount to be submitted
and determined after the Commission's final decision in this case.
Complainant should also be awarded his reasonable attorneys' fees,
the amount to be submitted and determined after the Commission's
final decision in this case, if such fees exceed the amount of
punitive damages awarded.


7. Other Equitable Relief
Finally, the Executive Director asks that the Commission
order Respondent IslandAir to:

a) cease and desist from its policy and practice of
refusing to consider and/or hire monocular pilot who
have first class medical certificates and waivers for
their vision;

b) adopt a written non-discrimination policy based on
disability;

c) post such policy and procedures at all job sites;

d) formally train all management personnel about such
policy; and

e) publish the results of this contested case hearing in a
press statement provided by the Commission in at least
one newspaper published in the State and having general
circulation in Honolulu, Hawaii.

At the contested case hearing, Wing testified that IslandAir
maintains a policy of not considering and/or hiring monocular
pilots who have vision waivers to their first class medical
certificates. (Tr. at 495) In Aloha IslandAir Inc. v. Tseu, the
Ninth Circuit stated that because Complainant Pied had received
full FAA medical approval to fly, his monocular vision does not
hinder his ability to safely pilot planes. 128 F.3d 1301, 1303
(9th Cir. 1997) I therefore recommend that the Commission order
Respondent to cease and desist from implementing and maintaining
this policy. I also recommend that the Commission direct
Respondent IslandAir to adopt an non-discrimination policy based
on disability within 90 days after the final decision in this
case. I also recommend that the Commission direct Respondent
to conduct formal training for all management personnel within 90
days of adopting such policy.
The Commission should also direct Respondent to post such
policy on employee bulletin boards throughout its work sites
within 90 days of its adoption.
I believe that the best way to publicize this decision and
IslandAir's non-discrimination policy to the public is to require
it to publish the attached Public Notice (Attachment 1) in a
newspaper published in the State of Hawaii having a general
circulation in the City and County of Honolulu.


IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondent Aloha IslandAir Inc.
violated H.R.S. sec. 378-2 when it failed to hire Complainant Bruce
Pied as a pilot on the basis of his disability.
For the violation found above, I recommend that pursuant to
H.R.S. sec. 368-17, the Commission should order:
1. Respondent IslandAir to immediately employ Complainant
Pied as a first officer in the next ground school
class.
2. Respondent to pay Complainant back pay in the amount he
would have earned as a first officer with IslandAir
from August 31, 1990 - August 31, 1995, a captain with
IslandAir from August 31, 1995 - August 31, 1998 and as
a first officer with a national airline from August
1998 to his placement in an IslandAir ground school
class. This amount should include benefits he would
have received and should be offset by any amounts
Complainant earned and the value of any benefits he
received from August 31, 1990 to the date of his
placement. The amount should be adjusted to account
for income taxes and should include prejudgment
interest at the rate of 10% per annum until the date of
the Commission's final decision.
3. Respondent to pay Complainant the difference between
his salary as a first officer with IslandAir and what
he would earn as a first officer with a national
airline until Complainant obtains a first officer
position with a national airline or until he reaches
age 60.
4. Respondent to pay Complainant $150,000 as damages in
compensation for injury to his feelings, emotions and
mental well-being.
5. Respondent to pay Complainant punitive damages, the
amount to be submitted and determined at a later
hearing.
6. Respondent to pay Complainant his reasonable costs, to
be submitted and determined at a later hearing, and his
reasonable attorney's fees and costs, to be submitted
and determined at a later hearing if such fees exceed
the amount of punitive damages awarded. 7. Respondent to cease and desist from implementing and
maintaining its current policy of refusing to consider
and/or hire monocular pilots who have a vision waiver
to their first class medical certificates and to adopt
a written non-discrimination policy based on disability
within 90 days of the Commission's final decision in
this matter.
8. Respondent to conduct training of all its management
employees on the non-discrimination policy within 90
days of their adoption.
9. Respondent to post such policy on employee bulletin
boards throughout IslandAir's work sites.
10. Respondent to publish the attached Public Notice
(Attachment 1) in a newspaper published in the state of
Hawaii having a general circulation in the City and
County of Honolulu within 30 days of the Commission's
final decision in this matter.

Dated: Honolulu, Hawaii, _____________________________.

HAWAI'I CIVIL RIGHTS COMMISSION



______________________________
LIVIA WANG
Hearings Examiner

Copies sent to:

Cheryl Tipton, Esq., HCRC Enforcement Attorney
David F. Simons, Esq., Attorney for Complainant-Intervenor
Richard M. Rand, Esq., Attorney for Respondent

1. To the extent that the following findings of fact also
contain conclusions of law, they shall be deemed incorporated
into the conclusions of law.

2. Unless otherwise indicated, "Tr." preceding a page number
refers to the transcript of the contested case hearing held
on February 16-19, 22-23, 26, March 2 and May 10, 1999;
"Ex." followed by a number refers to the Complainant and
Executive Director's joint exhibits; "Ex." followed by a
letter refers to Respondent IslandAir's exhibits.

3. Beyond 150 feet, persons with two eyes also lose stereopsis.
(Tr. at 17, 264)

4. Airline companies may be categorized into three main groups:
major airlines (those with gross revenues of over $1
billion/year), national air lines (those with gross revenues
of $100 million to $1 billion/year) and regional airlines
(those with gross revenues of under $100 million/year). (Tr.
at 163-164) Respondent IslandAir is considered to be a
regional airline. Aloha Airlines is considered to be a
national airline. Examples of major airlines are: United
Air Lines, American, TWA, Northwest and Delta. (Tr. at 129-
130, 162-163)

5. First class medical certificates must be renewed every 6
months. If not renewed, first class medical certificates
lapse and become second class medical certificates, which may
be used to fly as first officers, (or second in command
"SIC"). After one year, second class medical certificates
lapse and become third class medical certificates which
allows pilots to fly on a private (as opposed to commercial)
basis. Since 1987 Complainant has been able to obtain a
first class medical certificate whenever he needed one for a
pilot job. (Tr. at 22-23, 44-48; Ex. 72)

In a related case, the Ninth Circuit Court of Appeals held
that because Complainant had received full FAA medical
approval to fly, his disability did not affect his ability to
safely pilot airplanes. Therefore, Complainant's disability
discrimination claims under H.R.S. Chapter 378 were not
preempted by the federal Airline Deregulation Act. Aloha
IslandAir, Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997)
(Ex. 43)

6. An ATP license enables a pilot to fly as a captain on a
commercial airline. (Tr. at 26)

7. Also known as Dash-6 or Twin Otter planes.

8. This plane is larger and more complicated than the DHC-6.
(Tr. at 60-61; Exs. 18, 67, 69)
9. These interviews were conducted in person or by telephone.
Often, if an applicant walked in a resume, and if Dickey or
Ernst were free, the applicant was immediately interviewed.
(Tr. at 609-610)

10. This test determines whether an applicant under stress can
still perform in the cockpit. The test was administered by
Charles Ray King, manager of flight operations for Aloha
Airlines, at a cost of over $100 per test. (Tr. at 584, 610)

11. The record shows that IslandAir hired two pilots in June 1990
and a class of four pilots in July 1990. (See, Exs. 46, 48)
12. Although required by H.A.R. sec. 12-46-21, IslandAir did not
retain and could not produce the resumes of most of the
pilots hired from 1990 - 1991. Therefore it is difficult to
compare those pilots' flight times and aircraft experience to
Complainant's.

13. A person must be at least 23 years old to obtain an ATP
license. However, a person can fly as a first officer
without having an ATP license. (Tr. at 50, 661)

14. This class started on July 29, 1991.

15. This plane is also larger, more complicated and carries more
passengers than the DHC-6. (Tr. at 73; Ex. 69)

16. A flight engineer, or second officer, is a third reserve
pilot required on certain larger airplanes. Unless the PIC
or SIC becomes incapacitated, the flight engineer normally
does not pilot the plane.

17. Airlines may require pilots to obtain "type ratings" in order
to fly as captains on aircraft over 12,500 pounds. A type
rating is a certification by the FAA that the pilot can
operate a particular aircraft as a captain. (Tr. at 167, 207)

18. Pursuant to FAA regulations.

19. To the extent that the following conclusions of law also
contain findings of fact, they shall be deemed incorporated
into the findings of fact.

20. While it is clear that King and Ernst would not and did not
comment on Complainant's response test scores, Dickey could
have. Dickey determined whether applicants passed the test
and would so notify them. At the contested case hearing, he
confirmed that Complainant's scores were "good scores". (Tr.
at 615, 621) Finally, the record shows that when writing
resumes or filling out forms Complainant estimated and
rounded off his flight hours, which were both higher and
lower than his actual times. (Tr. at 214-228)

21. The Rehabilitation Act of 1973 addresses disability
discrimination in employment by the federal executive branch
and targeted private employers. Section 501 of the Act
requires federal departments and agencies to develop
affirmative action plans for the employment of qualified
individuals with disabilities. The EEOC is charged with
review of such agency affirmative action plans. Section 503
of the Act requires parties contracting with the United
States to take affirmative action in the employment of the
disabled. The Department of Labor (DOL) through its Office
of Federal Contract Compliance Programs (OFCCP) enforces this
section. Section 504 prohibits discrimination against
disabled individuals by programs or activities which receive
federal funds or which are managed by certain federal
agencies. Recipients are not required to adopt affirmative
action plans. The coordinating body for the implementation
of sec. 504 is the Department of Justice (DOJ), and each agency
is required to issue implementing regulations consistent with
those of the DOJ. See, Lex K. Larson, Employment
Discrimination 2nd Ed. sec.sec. 160-164 (1998). Because the
purposes of sec. 504 are more similar to H.R.S. 378-2, I find
regulations implementing this section instructive.

22. The Rehabilitation Act similarly defines "individual with a
disability to mean ". . . any individual who (i) has a
physical or mental impairment which substantially limits one
or more of such person's major life activities, (ii) has a
record of such an impairment, or (iii) is regarded as having
such an impairment . . ." 29 U.S.C. 706B.

23. Although Department of Labor regulations implementing
sec. 504 contain a definition of these terms, they are defined
only in the contexts of being a beneficiary or working. 29
CFR sec. 32.3 (1980) states in relevant part:

Substantially limits means the degree that the
impairment affects an individual becoming a beneficiary
of a program or activity receiving Federal financial
assistance or affects an individual's employability. A
handicapped individual who is likely to experience
difficulty in securing or retaining benefits or in
securing, or retaining, or advancing in employment
would be considered substantially limited.

The DOL regulations therefore do not define "substantially
limits" in the context of other major life activities such as
seeing. In addition, the cases cited by IslandAir analyze
impairments only in the context of working, and not in
regards to other major life activities. See, Cecil v.
Gibson, 820 S.W.2d 361 (Tn. App. 1991); E.E. Black v.
Marshall, 497 F.Supp 1088 (D. Haw. 1980).

24. Recently several federal courts have held that persons with
monocular vision see in a manner which substantially
different from binocular people and are therefore disabled
under the ADA. See, Kirkingburg v. Albertson's, Inc., 143
F.3d 1228 (9th Cir. 1998), cert. granted, 119 S.Ct 791 (1999)
(monocular truck driver disabled under the ADA); Doane v.
City of Omaha, 115 F.3d 624 (8th Cir. 1997) (monocular police
officer disabled for purposes of ADA); EEOC v. Union Pacific
Railroad, 6 F.Supp.2d 1135 (D. Idaho. 1998) (monocular driver
disabled under the ADA); Coleman v. Souther Pacific
Transportation Co., 997 F.Supp 1197 (D. Ariz. 1998) (train
switchman applicant with monocular vision disabled under the
ADA).

Furthermore, as pointed out in the Executive Director's post-
hearing brief, the "handicapped" or "disabled" status of
monocular plaintiffs in Rehabilitation Act and other state
civil rights commission cases has not been questioned. See,
Holly v. City of Naperville, 603 F.Supp. 220 (N.D. Ill.
1985); Wright v. Columbia University, 520 F.Supp. 789 (E.D.
Pa. 1981); Kampmeier v. Nyquist, 553 F.2d 296 (2nd Cir.
1977); In the Matter of Maliszewski and Illinois Dept. of
Transportation, 1996 WL 534392 (Illinois Human Rights
Commission July 29, 1996); In the Matter of Chevalier and
the Toledo Edison Co., 1990 WL 656355 (Ohio Civil Rights
Commission, February 28, 1990); In the Matter of the
Accusation of the Dept. of Fair Employment and Housing v.
City of Merced Police Dept., 1988 WL 242649 (California Fair
Employment and Housing Commission, December 15, 1988);
Jones v. Bohn Aluminum & Brass Co., Case No. 43740-E7
(Michigan Civil Rights Commission, December 16, 1980);
Reimers v. New York City Dept. of Personnel, 1977 WL 52808
(New York Commission on Human Rights, December 13, 1977).

25. IslandAir does not claim that Complainant poses a direct
threat to the health or safety of himself or others and did
not present evidence showing that binocular vision is a bona
fide occupational qualification (BFOQ). (Tr. at 473-474; Ex.
45)

26. Because IslandAir did not retain the resumes of most of the
pilots hired in 1990-1991, it is difficult to determine
exactly when these pilots submitted their resumes. However,
it is undisputed that resumes were usually submitted prior to
the completion of IslandAir applications forms.

27. John Ross submitted his application on May 14, 1990. (Ex.
39)

28. Pursuant to the Executive Director's allegations,
Complainant's applications were made prior to July 25, 1991.
Cabrinha did not become President until September 1, 1991.
Therefore the order acknowledges the existence of the policy
prior to Cabrinha's administration.

29. Again, this is prior to Cabrinha's administration.



APPENDIX A

On August 22, 1991 Complainant Bruce Pied filed a complaint
against Aloha IslandAir, Inc. (hereinafter "IslandAir") alleging
disability discrimination. On October 12, 1994 Complainant filed
a second complaint against IslandAir alleging disability
discrimination and retaliation.
On December 13, 1994 IslandAir filed an action in the U.S.
District Court for the District of Hawaii seeking declaratory and
injunctive relief that the Airline Deregulation Act preempted the
disability discrimination provisions of H.R.S. Chapter 378. On
July 13, 1995 the District Court granted IslandAir's motion for
summary judgment, concluding that the Airline Deregulation Act
preempts the application of the disability discrimination
provisions of H.R.S. Chapter 378 to IslandAir's pilot applicants,
and permanently enjoined Executive Director from applying the
disability provisions of H.R.S. Chapter 378 to IslandAir's pilot
applicants. On October 14, 1997 the Ninth Circuit Court of
Appeals vacated the District Court's order, holding that the
disability provisions of H.R.S. Chapter 378 are not preempted by
the Airline Deregulation Act because Complainant's disability
discrimination claim does not raise significant safety concerns.
On November 19, 1997 the Executive Director issued a notice
of finding of reasonable cause to believe that unlaw
discriminatory practices have been committed. On August 6, 1998
the Executive Director sent Respondent Aloha IslandAir, Inc. a
final conciliation demand letter pursuant to Hawaii Administrative Rule
(H.A.R.) 12-46-17 in FEP Nos. WH-5137 and 6827.
On August 24, 1998 both complaints were docketed for
administrative hearing and notices of docketing of complaint were
issued. On August 25, 1998 the Executive Director filed a motion
to consolidate the two cases. This motion was granted on August
26, 1998.
On August 25, 1998 the Executive Director also filed an ex
parte motion to postpone the scheduling conference until after the
disposition of Complainant's Petition for Declaratory Relief,
which sought a ruling from this Commission as to his right to
participate in the contested case hearing. On August 26, 1998 the
Hearings Examiner issued a Notice of Scheduling Conference,
setting the scheduling conference beyond thirty days after the
docketing of the complaints. On September 2, 1998 Respondent
IslandAir moved to strike the motion to postpone scheduling
conference and to rescind order granting such motion. On
September 18, 1998 the Hearings Examiner issued an order
reconsidering in part and amending the Notice of Scheduling
Conference and Order.
On September 18, 1998, the Commission issued an order
summarily granting Complainant's Petition for Declaratory Relief.
On September 21, 1998 Complainant filed a motion for intervention
as a party. On September 24, 1998 the Executive Director filed a
statement of support of Complainant's motion. On September 25,
1998 Respondent filed a memorandum in opposition to the motion. A
hearing on the motion was held on September 19, 199998 at the
Department of Labor and Industrial Relations Director's conference
room, 830 Punchbowl St., room 320, Honolulu, Hawaii.
Participating were: David F. Simons, Esq. on behalf of
Complainant, Enforcement Attorney Cheryl Tipton, and Richard M.
Rand, Esq. on behalf of Respondent. On September 30, 1998 the
Hearings Examiner granted Complainant's Motion for Intervention as
a party.
On September 24, 1998 the Executive Director filed its
scheduling conference statement. On September 30, 1998
Complainant filed his scheduling conference statement. IslandAir
filed its scheduling conference statement on October 2, 1998. A
scheduling conference was held on October 5, 1998 and the parties
agreed that Complainant's retaliation claim would not be litigated
in the contested case proceeding. A Scheduling Conference Order
was issued on October 8, 1998. An Amended Scheduling Conference
Order was issued on January 22, 1999.
On January 25, 1999 notices of hearing and pre-hearing
conference were issued. On January 29, 1999 the parties filed a
Stipulation for Protected Order Regarding Complainant's Tax
Records.
On February 5, 1999 Complainant filed a motion for summary
judgment and Respondent filed three motions for summary judgment.
A notice of hearing on all four motions was issued that day. On
February 9, 1999 the parties filed memoranda in opposition to the
motions. The Executive Director also filed a memorandum in
support of Complainant's motion for summary judgment. On February
10, 1999 Respondent filed reply memoranda in support of two of its
motions. A hearing on the four motions for summary judgment was
held on February 11, 1999 at the Hawaii Civil Rights Commission
conference room, 830 Punchbowl St. room 411 before this Hearings
Examiner. Participating were: David F. Simons, Esq. and Matthew
J. Viola, Esq. on behalf of Complainant, Enforcement Attorney
Cheryl Tipton, on behalf of the Executive Director, and Richard M.
Rand, Esq. and Tamara M. Gerrard, Esq. on behalf of Respondent.
At the conclusion of the hearing, the Hearings Examiner orally
denied summary judgment on all four motions.
The parties filed their pre-hearing conference statements on
February 9, 1999. On February 11, 1999 a pre-hearing conference
was held. On February 12, 1999 the parties filed a Stipulation as
to Respondent's Averments.
On February 12, 1999 Respondent filed three motions in limine
and Complainant filed two motions in limine. On February 16, 1999
Complainant and Respondent filed memoranda in opposition to each
other's motions in limine. A hearing on all five motions was held
on February 16, 1999. Participating were: David F. Simons, Esq.
on behalf of Complainant, Enforcement Attorney Cheryl Tipton on
behalf of the Executive Director, and Richard M. Rand, Esq. and
Tamara M. Gerrard, Esq. on behalf of Respondent. At the
conclusion of the hearing, the Hearings Examiner orally denied all
five motions in limine.
The contested case hearing on this matter was held on
February 16, 17, 18, 19, 22, 23, 26 and March 2, 1999 at the
Hawaii Civil Rights Commission conference room, 830 Punchbowl
Street, room 411, Honolulu, Hawaii pursuant to H.R.S. Chapters 91
and 368. Complainant was represented by David F. Simons, Esq. and
Complainant Pied was present during portions of the hearing. The
Executive Director was represented by Enforcement Attorney Cheryl
Tipton. Respondent IslandAir was represented by Richard M. Rand,
Esq. and Tamara M. Gerrard, Esq.
On February 18, 1999 the parties filed a Stipulation
Regarding Executive Director's Position on Complainant's
Disability. On February 23, 1999 Complainant orally moved to
amend his first complaint to allege a failure to hire from the
period August 1990 through August 1994. On February 24, 1999 the
Executive Director filed a joinder in the motion and Respondent
filed a memorandum in opposition to the motion. A hearing on the
motion was held on February 26, 1999 and at the conclusion of the
hearing, the Hearings Examiner orally granted the motion.
The parties were granted leave to file post-hearing briefs.
On March 23, 1999 the parties filed post-hearing briefs.
On March 29, 1999 Respondent IslandAir filed a motion to
reopen the record to receive the testimony of Tony Rogers. By
letter dated April 16, 1999 this Hearings Examiner notified the
parties that she planned to reopen the hearing to take the
testimony of Patricia Pedro. On April 21, 1999 Complainant and
the Executive Director filed memoranda in opposition to the
motion. A hearing on the motion was held on April 23, 1999. In
attendance were: Richard M. Rand, Esq. and Tamara M. Gerrard,
Esq. on behalf of Respondent IslandAir, Enforcement Attorney
Cheryl Tipton on behalf of the Executive Director, and David F.
Simons, Esq. for Complainant. At the conclusion of the hearing,
the Hearings Examiner orally granted the motion and issued an
order reopening the hearing to receive the testimony of Tony
Rogers and Patricia Pedro that day.
The contested case hearing was continued on May 10, 1999 at
the Hawai'i Civil Rights Commission conference room, 830 Punchbowl
Street, room 411, Honolulu, Hawaii pursuant to H.R.S. Chapters 91
and 368. Complainant was represented by David F. Simons, Esq.
The Executive Director was represented by Enforcement Attorney
Cheryl Tipton. Respondent IslandAir was represented by Richard
M. Rand, Esq. On May 17, 1999 the parties filed supplemental
post-hearing briefs.


ATTACHMENT 1

PUBLIC NOTICE

published by Order of the
HAWAI'I CIVIL RIGHTS COMMISSION
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
STATE OF HAWAII

After a full hearing, the Hawai'i Civil Rights Commission has
found that Aloha IslandAir, Inc. violated Hawaii Revised Statutes
Chapter 378, Employment Discrimination, when it failed to hire an
applicant for a pilot position because of his disability (monocular
vision). (William D. Hoshijo, Executive Director, on behalf of the
complaint filed by Bruce A. Pied and Bruce A. Pied vs. Aloha
IslandAir, Inc., Docket Nos. 98-007-E-D and 98-008-E-D-RET, [date of
final decision] 1999).

The Commission has ordered us to publish this Notice and to:

1) Immediately hire that applicant as a first officer in the
next ground school class

2) Pay that applicant back pay in the amount he would have
earned (including benefits) if he had been hired in August
1990

3) Pay that applicant front pay (the difference in the amount
he earns as a first officer with Aloha IslandAir, Inc. and
in the amount he would earn as a first officer with a
national airline)

4) Pay that applicant a monetary award to compensate him for
emotional injuries he suffered

5) Pay that applicant punitive damages

6) Pay that applicant his reasonable costs and attorneys'
fees, if such fees exceed the amount of punitive damages
awarded

7) Cease and desist from implementing and maintaining a
policy of refusing to consider and/or hire monocular
applicants who have FAA first class medical certificates
with vision waivers

8) Develop a written non discrimination policy based on
disability, conduct training on such policy and post such
policy on employee bulletin boards.

DATED: ___________ By __________________________________________
Authorized Agent for Aloha IslandAir, Inc.